Secret jars in a prison fridge hold AZ’s lethal injection drugs — and they may be expired

In a locked and alarm-equipped refrigerator at an Arizona Department of Corrections Rehabilitation & Reentry facility in Florence are eight unmarked glass containers that resemble Mason jars. Inside the jars is a white substance that the agency claims is pentobarbital salt, the active pharmacological ingredient in the drug used to execute Arizona Death Row prisoners.

It’s enough poison to kill every Death Row prisoner in the United States and then some, according to a legal declaration obtained by a federal public defender who interviewed the manufacturer.

And how long it’s sat in that refrigerator is a question that ADCCR staff won’t answer, because state law forbids divulging details about execution sources and executioners themselves. It’s also unclear if the drug has an expiration date.

The current Arizona Corrections administration did not procure the drug. Instead, it was purchased by the administration of former Gov. Doug Ducey. The invoice from the manufacturer is dated October 2020, and the drug was used in three executions in 2022.

Now it sits, unmarked in a refrigerator, ostensibly waiting for the next execution, which is being discussed in the Arizona Supreme Court. Aaron Gunches, who killed a man in 2002, has asked to be put to death, and Gov. Katie Hobbs is trying to accommodate him.

But there are questions.

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“I’m flabbergasted that a medical doctor would draw anything from an unmarked container and put it into people,” said David Duncan, the retired federal magistrate judge who Hobbs hired in 2023 to investigate the state’s lethal injection protocols. Duncan was unceremoniously fired late last year by Hobbs, who he has never met, before he could finish a report that promised to be scathing.

“…While certainly possible in theory, lethal injection is not a viable method of execution in actual practice,” he wrote in a summary before he was canned.

Duncan was told by ADCRR personnel that the pentobarbital salt can last forever. But Kelley Henry, a federal defender in Tennessee, claims she was told by the drug manufacturer, Absolute Standards, that the salt is unstable, needs to be refrigerated and has a shelf life of 2 1/2 years.

So, whether it was delivered to Arizona at the end of 2020, as suggested by the purchase invoice, or sometime in 2021 before the executions, it may well be at its limit.

Duncan is not the only one raising concerns.

On Jan. 15, U.S. Attorney General Merrick Garland withdrew the federal execution protocol using pentobarbital because of the likelihood that the drug, once thought to be the most humane form of execution, in fact causes a painful death by pulmonary edema that has been likened to drowning or waterboarding torture. Earlier this month, a Virginia law professor tried to file a “friend of the court” brief in the Arizona Supreme Court in the Gunches case on the exact same grounds.

So, can Arizona go forward with any executions using the pentobarbital in those unmarked jars in Florence?

Snuffing out an independent investigation

Duncan, who sat on the federal bench in Phoenix for 17 years, was appointed by Hobbs in early 2023 to study the state’s execution protocol and suggest ways to move forward with executions. There had been a long history of problems, some associated with the drugs used. In 2010, for example, the corrections department side-stepped federal laws and FDA and DEA regulations to import a drug from the United Kingdom, and later, in 2015, tried to import it from India.

Then, in 2014, Arizona used a questionable cocktail that took 15 injections and nearly two hours to kill the prisoner as he panted and gasped on the execution gurney.

And there were repeated problems getting doctors and other medical staff competent enough to set the catheter lines in the condemned mens’ arms and legs. Consequently, there were no executions between the 2014 botch and 2022, when then-Arizona Attorney General Mark Brnovich filed death warrants for three death row prisoners. All three were executed and the problems setting lines persisted.

Brnovich also obtained a death warrant for Gunches, but not in time to carry out the execution before his term ended. Hobbs and the newly elected Arizona attorney general, Kris Mayes, decided not to, and instead appointed Duncan to do an independent review of the process.

Duncan pored over thousands of documents, conducted numerous interviews and uncovered some unsettling facts, including how prison staff had to consult Wikipedia at the last minute before one of the executions to estimate a fatal dose of pentobarbital. He also was concerned that the drugs were delivered by the manufacturer in unmarked containers to a private residence.

“Until the very end, I thought they were open to every question I had,” he said. He was supposed to make recommendations of best practices, after all.

“At the end, it completely shifted.”

Duncan wanted to watch a rehearsal of the process, and the department refused on grounds of confidentiality. The medical staff did not want to be seen, for fear that, if outed, they would lose their respective medical licenses.

“They said it’s against the law to reveal their identities,” Duncan recalled.

He was incensed at the insinuation.

“To sit across from a federal judge and suggest that the retired federal judge is going to violate the law is a ridiculous notion. And I said, I can’t accept that. Then they said I could not watch a dry run for the same reason — that I would create a risk.”

Poorly executed: The politics behind executions

Duncan took issue with the things that they were rehearsing: parking, crowd control, where to seat journalists, how to walk the prisoner from his cell to the death chamber. While the pomp and circumstance were rehearsed, the actual execution — how to set the lines and administer the drugs — wasn’t, even though the current medical team has never participated in a lethal injection.

His contact at ADCRR “volunteered to me that there was no expiration date on pentobarbital, the base chemical. And I said, ‘How do you know that?’ And she said, ‘Because I checked with the manufacturer.’”

In the course of his research, Duncan didn’t recall seeing any documentation of a phone call with the manufacturer saying there was no expiration date. His source said those records had been thrown away.

“I found it hard to believe that the documents showing provenance and vitality and potency of the medication, that you would just throw them away. That was a step away from transparency,” he said.

One pharmaceutical company that used to make pentobarbital sodium salt says on its product page that the drug has a shelf life of three years.

Duncan concluded that lethal injection was too prone to error and suggested the state should consider firing squad, which, though shocking to witnesses, had a lesser chance of being botched.

Then politics raised its ugly head. The Arizona Attorney General’s Office was in a pitched battle with Maricopa County Attorney Rachel Mitchell over who had legal authority to request death warrants for execution. And Donald Trump, who is a booster of capital punishment was reelected, and Republicans won up and down the November 2024 ballot.

It was not a good time for a Democratic governor hoping to boost her reelection chances in a state that just shifted to the right to issue a scathing review of execution practices. The mood changed.

Hobbs fired Duncan and turned to an in-house review of execution protocol by the Corrections Department, which concluded that all problems were resolved and executions were ready to resume.

Sourcing execution drugs

In April 2022, Henry, an assistant federal public defender from Tennessee, and an investigator in her office showed up at the Connecticut offices of the only domestic supplier of pentobarbital salt, Absolute Standards, to ask questions.

Because of a 2015 U.S Supreme Court decision, defendants about to be executed were required to find the drugs to do so if they didn’t like the executing state’s decision. Pentobarbital was thought at the time to be the most humane alternative.

Although the drug is used in clinical settings under its trade name, Nembutal, its European manufacturer refused to allow its use in executions, forcing state corrections departments to buy the raw materials and then find a compounding pharmacy to turn it into something that could be injected into the condemned prisoner.

Absolute Standards saw a hole in the market and filled it. Furthermore, the company owner assured Henry that his company was the only domestic source of the drug’s raw material, known in technical parlance as the active pharmaceutical ingredient. He told her his company had supplied the drug to the federal government and to Arizona and other states. (The company said in 2024 that it stopped producing the drug for executions at the end of 2020. It did not respond to a request for comment from the Arizona Mirror.)

Poorly executed: IVs and ironies

Henry and the investigator were told that the price was $1.5 million — the same price that Arizona paid in 2020 — and that it would take a year to produce. The reason for the time and the high price was that, in order to be of adequate quality and stability, it had to be made in batches of at least one kilogram, and the process was time-consuming.

“They very specifically said it has a shelf life,” Henry told Arizona Mirror, raising questions as to whether the Arizona supply is still viable.

And now the feds have renounced the use of pentobarbital altogether in federal executions.

“Having assessed the risk of pain and suffering associated with the use of pentobarbital, the review concluded that there is significant uncertainty about whether the use of pentobarbital as a single-drug lethal injection for execution treats individuals humanely and avoids unnecessary pain and suffering,” Garland wrote in his order ending the use of the drug by the U.S. Department of Justice.

“Because it cannot be said with reasonable confidence that the current execution protocol ‘not only afford[s] the rights guaranteed by the Constitution and laws of the United States’ but ‘also treat[s] individuals [being executed] fairly and humanely,’ … that protocol should be rescinded, and not reinstated unless and until that uncertainty is resolved. In the face of such uncertainty, the Department should err on the side of treating individuals humanely and avoiding unnecessary pain and suffering.”

What the incoming presidential administration decides remains to be seen.

The Governor’s Office, the Attorney General’s Office and the Department of Corrections did not responded to inquiries before this story was published. Several hours after publication, a spokeswoman for Hobbs said the governor was “committed to upholding strict protocols and ensuring lethal injection drugs are thoroughly tested before use.”

“Our office is currently reviewing the DOJ report, and we have no further information to share at this time,” spokeswoman Liliana Soto told the Mirror.

***UPDATE: This story has been updated with a comment from the Governor’s Office.

Arizona Mirror is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: info@azmirror.com.